michael davey

BY: MICHAEL J. DAVEY, ESQ.

Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C.

344 West Front StreetMedia, PA 19063

(610) 565-3700www.paemploymentlaw.blogspot.com

[email protected] @PaEmploymentLaw

SOCIAL MEDIA PLUS

OMG!

• The interaction of Social Media The interaction of Social Media and HR/employment issues.and HR/employment issues.

• Employers - adapting to Employers - adapting to employee use of Social Media employee use of Social Media and handling hiring, firing, and and handling hiring, firing, and policy issues.policy issues.

• Employees – training on Employees – training on employer expectations and how employer expectations and how to be responsible users.to be responsible users.

• Social Media has changed Social Media has changed business, and the way business, and the way companies do business, forever.companies do business, forever.

• Communication to consumers & Communication to consumers & clients used to be one-way.clients used to be one-way.

• Social Media now allows for Social Media now allows for simultaneous two-way simultaneous two-way communications between communications between company and consumer.company and consumer.

• Currently, Facebook has more than Currently, Facebook has more than 800,000,000 active users and more 800,000,000 active users and more than 50% log on every daythan 50% log on every day

• That is 1 out of every 8.5 people in That is 1 out of every 8.5 people in the entire worldthe entire world

• Average Facebook user has 130 Average Facebook user has 130 friendsfriends

• More than 350,000,000 active More than 350,000,000 active users access Facebook through users access Facebook through mobile devicesmobile devices

57% of people talk to other people

more online than they do in person

• NewsNews

• CommunicationCommunication

• Sharing photos & videosSharing photos & videos

• Marketing & AdvertisingMarketing & Advertising

• OtherOther

1 in 5 couples meet online.

1 in 5 divorces are blamed on Facebook.

(1). Use in Hiring(1). Use in Hiring

(2). Social Media Policies(2). Social Media Policies

(3). Firing / Discipline(3). Firing / Discipline

80% of companies use social media for recruitment.

95% of those use LinkedIn.

““The Court must proceed with care The Court must proceed with care when considering the whole when considering the whole concept of privacy expectations concept of privacy expectations in communications made on in communications made on electronic equipment owned by electronic equipment owned by a government employer. The a government employer. The judiciary risks error by judiciary risks error by elaborating too fully on the elaborating too fully on the Fourth Amendment implications Fourth Amendment implications of emerging technology before of emerging technology before its role in society has become its role in society has become clear.”clear.”

City of Ontario v. QuonCity of Ontario v. Quon, U.S. , U.S. Supreme Court (6/17/2010)Supreme Court (6/17/2010)

During oral arguments in

Quon, Chief Justice John Roberts asked

(seriously) what the difference was

“between email and a pager?”

• How many people have How many people have checked out an checked out an applicant’s Facebook applicant’s Facebook page, Twitter or other page, Twitter or other social media site during social media site during the hiring process?the hiring process?

• Screening applicantsScreening applicants

• What kinds of things What kinds of things might appear on an might appear on an applicant’s social media applicant’s social media website?website?

• Personal habits, social Personal habits, social activities, education, activities, education, hobbies, etc.hobbies, etc.

According to Careerbuilder.com, 20% of companies

admitted to checking applicants’

profiles before deciding to hire

them. 9% more said they would start.

• But, what kinds of But, what kinds of information might be information might be present that you do present that you do notnot want to know about?want to know about?

• Title VII, ADAAA, Title VII, ADAAA, Pregnancy, ADEA, GINA, Pregnancy, ADEA, GINA, etc.etc.

What happens in Vegas stays in

Vegas.

And also on Facebook,

YouTube, Twitter, Flickr,

Foursquare . . .

• Under GINA, it is illegal to Under GINA, it is illegal to discriminate against discriminate against applicants on basis of genetic applicants on basis of genetic information. information.

• Employer is generally Employer is generally prohibited from acquiring prohibited from acquiring genetic information about genetic information about applicants, or accessing applicants, or accessing sources where employer is sources where employer is likely to acquire genetic likely to acquire genetic information.information.

• ““Genetic information” Genetic information” includes: genetic diseases includes: genetic diseases or disorders, genetic or disorders, genetic tests, and family medical tests, and family medical history.history.

Stored Communications Act Stored Communications Act Limits compelled disclosure Limits compelled disclosure of electronic of electronic communications held by communications held by internet service providers internet service providers such as Facebook.such as Facebook.

Fair Credit Reporting Act Fair Credit Reporting Act Requires applicants to Requires applicants to provide authorization if a provide authorization if a party other than employer party other than employer conducts background conducts background check.check.

New Philadelphia Ordinance

generally prohibits employers from asking about, or

forcing disclosure of, an applicant’s

prior criminal history.

• Ask yourself – is it really Ask yourself – is it really necessary?necessary?

• If necessary, consider If necessary, consider having employee who is having employee who is not involved in hiring not involved in hiring process / decision review process / decision review social media content.social media content.

• Why are they needed?Why are they needed?

• Address problems / issues Address problems / issues associated with employee associated with employee usage.usage.

• Address employee Address employee expectations.expectations.

• Limit (?) employer liability.Limit (?) employer liability.

A July 2011 study of more than 120

multinational employers revealed

76% used social media for business. More than 50% did

not have social media policies.

• A must have.A must have.

• No “one-size-fits-all” No “one-size-fits-all” policy.policy.

• Should be tailored to Should be tailored to company & business.company & business.

Major League Baseball has a specific social

media policy that applies only to MLB personnel – not to

the players.

• Who to involve?Who to involve?• ManagementManagement• H.R.H.R.• I.T.I.T.• Marketing / P.R.Marketing / P.R.• LegalLegal• EmployeesEmployees

• Sets expectations for Sets expectations for employees.employees.

• Prohibits disclosure of trade Prohibits disclosure of trade secrets / privileged secrets / privileged information.information.

• Delineation between Delineation between employee vs. employer employee vs. employer (disclosures; FTC (disclosures; FTC regulations)regulations)

• No expectation of No expectation of privacy.privacy.

• Establishes defined rules Establishes defined rules – useful for UC issues.– useful for UC issues.

• Provides for uniform Provides for uniform system of enforcement.system of enforcement.

• Does not interfere with Does not interfere with NLRA rights.NLRA rights.

• NLRB is making point of NLRB is making point of investigating cases of investigating cases of employee discipline employee discipline arising from social media arising from social media use.use.

• Section 7 of NLRA allows Section 7 of NLRA allows employees to engage in employees to engage in “concerted activities,” for “concerted activities,” for “mutual aid or protection.”“mutual aid or protection.”

• Section 8(a)(1) of NLRA prohibits Section 8(a)(1) of NLRA prohibits employers from interfering with, employers from interfering with, restraining or prohibiting restraining or prohibiting employees’ right to exercise employees’ right to exercise Section 7 rights. Section 7 rights.

• These sections apply to both These sections apply to both union union andand non-union employees non-union employees of most employers.of most employers.

Emerging Trends/IssuesEmerging Trends/Issues::

(1). Overly broad employer (1). Overly broad employer social media policies that social media policies that violate NLRA.violate NLRA.

(2). Termination/discipline (2). Termination/discipline based on social media based on social media use that violates NLRA.use that violates NLRA.

As of August, 2011, the NLRB has

reviewed more than 129 cases that involve the use of

social media in some way.

Overly Broad PoliciesOverly Broad Policies::

• Prohibiting employees Prohibiting employees from posting pictures of from posting pictures of themselves on the themselves on the internet that depict the internet that depict the company in any way, company in any way, including company including company uniform, corporate logo, uniform, corporate logo, or corporate name.or corporate name.


• Prohibiting employees Prohibiting employees from making disparaging from making disparaging comments when comments when discussing the company discussing the company or supervisors, coworkers or supervisors, coworkers and/or competitors.and/or competitors.


• Subjecting employees to Subjecting employees to discipline for engaging in discipline for engaging in “inappropriate “inappropriate discussions” about discussions” about employer, management employer, management or co-workers, without or co-workers, without any limitations.any limitations.


• Prohibiting employees Prohibiting employees from using social media in from using social media in any way that may violate, any way that may violate, compromise, or disregard compromise, or disregard the rights and reasonable the rights and reasonable expectations of privacy or expectations of privacy or confidentiality of any confidentiality of any person or entity.person or entity.


• Prohibiting any Prohibiting any communication or post that communication or post that constitutes embarrassment, constitutes embarrassment, harassment or defamation harassment or defamation of employer or any of employer or any employee, officer, director employee, officer, director or representative of or representative of employer.employer.


• Prohibiting statements Prohibiting statements on social media that lack on social media that lack truthfulness or that truthfulness or that might damage the might damage the reputation or goodwill of reputation or goodwill of employer, its staff or employer, its staff or employees.employees.


• Prohibiting employees from Prohibiting employees from talking about company business; talking about company business; posting anything they would not posting anything they would not want their manager or supervisor want their manager or supervisor to see or that would put their job to see or that would put their job in jeopardy; disclosing in jeopardy; disclosing inappropriate or sensitive inappropriate or sensitive information about employer; or information about employer; or posting any pictures or comments posting any pictures or comments about employer or employees about employer or employees that could be construed as that could be construed as “inappropriate.”“inappropriate.”


• Prohibiting employees Prohibiting employees from using employer’s from using employer’s name, address or other name, address or other information on their information on their personal social media personal social media profiles.profiles.

• These types of broad These types of broad policies could all be policies could all be interpreted or applied in interpreted or applied in such a way so as to such a way so as to prevent or foreclose prevent or foreclose employees from engaging employees from engaging in concerted, protected in concerted, protected activities or collectively activities or collectively bargaining through social bargaining through social media. media.

True or FalseTrue or False: :

An employer cannot An employer cannot fire/discipline an fire/discipline an employee for social employee for social media use outside of the media use outside of the workplace.workplace.

• NLRB has taken the NLRB has taken the position that under position that under certain circumstances, certain circumstances, employee interaction and employee interaction and communication via social communication via social media constitutes media constitutes protected activity for protected activity for which employees cannot which employees cannot be disciplined or fired.be disciplined or fired.

Did U C what Becky said about her boss

on FB?

She is so getting fired.

• Crucial query of NLRB Crucial query of NLRB investigations / investigations / decisionsdecisions: Did employee’s : Did employee’s use of social media use of social media constitute “protected constitute “protected concerted activity” under concerted activity” under NLRA?NLRA?

• NLRB found nonprofit NLRB found nonprofit organization’s firing 5 organization’s firing 5 employees for engaging employees for engaging in a Facebook discussion in a Facebook discussion about another about another employee’s failure to employee’s failure to adequately help adequately help organization’s clients, organization’s clients, was unlawful. was unlawful.

• NLRB found ambulance NLRB found ambulance company’s termination of company’s termination of employee who had posted employee who had posted negative remarks about her negative remarks about her supervisor on employee’s supervisor on employee’s personal Facebook page, personal Facebook page, which drew supportive which drew supportive comments from employee’s comments from employee’s co-workers, was unlawful.co-workers, was unlawful.

• NLRB found car dealership NLRB found car dealership violated NLRA when it fired violated NLRA when it fired salesperson for posting salesperson for posting Facebook photos and Facebook photos and comments criticizing the comments criticizing the inexpensive food and drinks inexpensive food and drinks served by employer at a served by employer at a sales event – criticisms that sales event – criticisms that had been discussed among had been discussed among the sales personnel in the sales personnel in attendance.attendance.

• NLRB found sports bar NLRB found sports bar unlawfully fired 2 unlawfully fired 2 employees for employees for participating in a participating in a Facebook discussion Facebook discussion about employer’s tax about employer’s tax withholding practices withholding practices that had been started by that had been started by a former employee.a former employee.

One of the employees who was fired by the bar had simply

“Liked” the Facebook

conversation.

• When is it OK to fire / When is it OK to fire / discipline employee for discipline employee for social media use?social media use?

• When is social media use When is social media use not “protected concerted not “protected concerted activity?”activity?”

• NLRB found newspaper’s NLRB found newspaper’s firing of reporter who had firing of reporter who had repeatedly posted repeatedly posted inappropriate Tweets about inappropriate Tweets about homicides in the city and homicides in the city and about a local TV station, about a local TV station, despite being told by despite being told by newspaper to stop, was newspaper to stop, was lawful - none of the Tweets lawful - none of the Tweets related to the terms or related to the terms or conditions of reporter’s conditions of reporter’s employment.employment.

• NLRB found that restaurant NLRB found that restaurant was not prohibited from was not prohibited from firing a bartender for firing a bartender for unilaterally posting a unilaterally posting a Facebook comment about Facebook comment about the low amount of money the low amount of money he was earning, along with he was earning, along with an inappropriate comment an inappropriate comment disparaging the restaurant’s disparaging the restaurant’s customers.customers.

Bartender posted that he hadn’t had a raise in 5 years and was doing

waitresses’ work without tips.

He also called the customers “rednecks”

and that he wished they “choked on glass as they drove home

drunk.”

• NLRB found that nonprofit NLRB found that nonprofit facility for the homeless was facility for the homeless was permitted to fire employee permitted to fire employee who worked with residents who worked with residents with mental health issues, with mental health issues, because employee had because employee had engaged in Facebook engaged in Facebook conversation while on duty conversation while on duty in which she made in which she made disparaging comments disparaging comments about some of the residents.about some of the residents.

Employee post: “My dear client ms 1 is cracking up at my

post, I don’t know if shes laughing at me,

with me or at her voices, not that it matters, good to

laugh.”

• Emphasis is on Emphasis is on “concerted” activities.“concerted” activities.

• Expressions of individual Expressions of individual gripes or offensive, gripes or offensive, inappropriate comments inappropriate comments that are unconnected to that are unconnected to collective activity, are not collective activity, are not protected.protected.

• Public employers also Public employers also need to be attentive to need to be attentive to First Amendment rights.First Amendment rights.

• Employees cannot be Employees cannot be disciplined for speech disciplined for speech that involves matters of that involves matters of public concern.public concern.

• Social media policies – get Social media policies – get one!one!

• Think before you Tweet!Think before you Tweet!

• Consult with legal counsel Consult with legal counsel before firing/disciplining before firing/disciplining because of social media use.because of social media use.

• Use common sense (that goes Use common sense (that goes for both employers and for both employers and employees!)employees!)

michael davey

Business